Olds v. St. Louis Nat. Baseball Club
| Decision Date | 04 May 1937 |
| Citation | 104 S.W.2d 746,232 Mo.App. 897 |
| Parties | ROSE OLDS, APPELLANT, v. ST. LOUIS NATIONAL BASEBALL CLUB, A CORPORATION, RESPONDENT |
| Court | Missouri Court of Appeals |
Motion for Rehearing Overruled May 18, 1937.
Writ of Certiorari Denied July 2, 1937.
Appeal from the Circuit Court of the City of St. Louis.--Hon. Frank Landwehr, Judge.
REVERSED AND REMANDED.
Judgment reversed and cause remanded.
John L Harlan and Wilton D. Chapman for defendant (respondent).
Kavafian v. Seattle Baseball Club Association, 181 P. 679; Curtis v. Portland Baseball Club, 279 P. 277; Lorino v. New Orleans Baseball Amusement Company, 133 So. 408; Quinn et al. v. Recreation Park Ass'n et al., 78 Cal.App. 806.
Woodward & Evans for appellant.
The trial court erred in sustaining the demurrer to plaintiff's evidence for the following reasons: (1) The evidence was sufficient to make a jury question of the issue of defendant's negligence under the pleadings. Berberet v. Amusement Co., 319 Mo. 275, 3 S.W.2d 1025; Crane v. K. C. Baseball Co., 168 Mo.App. 301 153 S.W. 1076; Edling v. K. C. Baseball Co., 181 Mo.App. 327, 168 S.W. 908; Grimes v. Am. League Baseball Co. (Mo. App.), 78 S.W.2d 520; Cincinnati Baseball Club v. Eno, 112 Ohio St. 175, 147 N.E. 86; Wells v Minneapolis Baseball Ass'n, 122 Minn. 327, 142 N.W. 706; Wills v. Light & P. Co., 187 Wis. 626, 205 N.W. 556; Murrell v. Smith, 152 Mo.App. 95, 133 S.W. 76; Murphy v. Electric Park, 209 Mo.App. 638, 241 S.W. 651; Murphy v. Winter Garden (Mo. App.), 280 S.W. 444; Purdy v. Loew's, 220 Mo.App. 854, 294 S.W. 751; Steinke v. Palladium Co. (Mo. App.), 28 S.W.2d 440. (2) The issue of assumption of risk fell out of the case upon prima facie proof of defendant's negligence. Edling v. K. C. Baseball Co., supra; Grimes v. Am. League Baseball Co., supra; Cincinnati Baseball Club v. Eno, supra. It was defendant's negligence, and not one of the ordinary risks of the game, which directly resulted in plaintiff's injury. (3) Plaintiff was not guilty of contributory negligence as a matter of law. Edling v. K. C. Baseball Co., supra; Schneider v. St. Joseph Co., 238 S.W. 468; Aleckson v. Frisco Ry. Co., 213 S.W. 894; Nickelson v. Cowan, 9 S.W.2d 534.
This is an action for personal injuries sustained by plaintiff appellant as the result of being struck in the face by a baseball while she was a patron at a professional baseball game played at Sportsman's Park in the city of St. Louis, Missouri, on August 26, 1932. At the trial, at the close of plaintiff's case, the court gave a peremptory instruction to the jury to find for the defendant respondent, whereupon plaintiff took an involuntary nonsuit with leave to file a motion to set the same aside. Plaintiff duly filed such a motion, which was overruled. In due course plaintiff brings the case to this court by appeal.
Plaintiff's petition alleged, in substance, that defendant is engaged in the business of providing amusement in the form of professional baseball games and occupies premises in the city of St. Louis, Missouri, consisting of a baseball playing field and seats and facilities for patrons attending such games; that on August 26, 1932, plaintiff was a patron at a baseball game conducted by defendant on said premises and paid to defendant the regular admission price for the privilege of viewing said game; that defendant knew that during the progress of a baseball game, batted and thrown baseballs would frequently enter the spaces where patrons sit and that said baseballs were a source of danger to patrons; that on the occasion mentioned, plaintiff seated herself in a portion of the grandstand which was protected by a wire screen, but it became necessary for her to leave the premises before said baseball game was completed and she started towards the nearest exit and immediately after she stepped beyond the protection of said screen she was violently struck in the face and nose by a batted baseball and severely injured. Plaintiff alleged that her injuries were directly caused by the negligence of defendant in failing to provide screens or other protective devices which would prevent batted and thrown baseballs from injuring patrons while in the aisles and exits of the grandstand, when defendant knew, or by the exercise of ordinary care should have known, that without such protection patrons would be liable to suffer injuries from batted and thrown baseballs while entering and leaving the premises.
The amended answer of defendant contained a general denial after which it was alleged that plaintiff's injuries, if any, were directly due to or were contributed to by her own negligence in that plaintiff left the place of safety behind the screen where she had been seated and walked into an aisle in front of which there were no screen, with full knowledge that the game was in progress and a batter was batting and that a foul ball might enter said place and strike and injure her. The amended answer further alleged that whatever injuries plaintiff received were the result of the risk which plaintiff assumed at the time and place mentioned because of the nature of the game and the conditions were the same was in progress, including the aisles and seats, and were not the result of any negligence of defendant.
Defendant is the St. Louis member of the National Baseball League. Its team is known as the St. Louis Cardinals. During the summer months defendant, as a tenant, uses Sportsman's Park in the city of St. Louis for the purpose of having its team play such games as are scheduled by the National League to be played in St. Louis. On days in the summer when the park is not used by defendant's team, it is used by another St. Louis professional baseball team known as the St. Louis Browns, a member of the American League, to play games scheduled by that League to be played in St. Louis. It is not disputed, however, that on the day in question defendant was in full charge and control of the park, including the grandstand, as well as the ticket sellers, ushers and other attendants customarily used in conducting a professional baseball game.
On the day plaintiff sustained her injuries, defendant's team was playing a regularly scheduled game against another team of the National League called the New York Giants.
Plaintiff testified that she is a married woman and resides in the city of St. Louis with her husband and family; that over a period of about ten years prior to her injury she attended baseball games at the park mentioned; that she had seen baseball games played in smaller parks but had not attended games in any other major league park; that the day in question was known as "Ladies' Day;" that on such days the baseball clubs admit ladies free as far as general admission to the park is concerned; that she and her sister, Mrs. Fred Thoele, arrived at the park at about 2:45 P. M. and that there was a crowd there that day; that she went to the ticket office inside the park and bought two grandstand reserved seats by paying a small amount therefor. She was given two seats in row 5, section L, back of home plate. The seats were behind and protected by a wire screen. The evidence showed that the screen was made in two sections, the first of which was fifty-two feet in width and extended vertically upwards about four feet from the top of the concrete wall of the grandstand. The concrete wall was two feet ten inches high from the floor of box seats which were located in the front part of the grandstand. The individual grandstand seats were back of the boxes and extended backwards and upwards in rows and tiers. The other screen extended diagonally from the top of the first screen to the second deck of the grandstand and was forty-six and a half feet in width. The park layout from the grandstand viewpoint was in the shape of a horse shoe. There were eighteen rows of individual seats in the grandstand with box seats in front of the front row thereof and an aisle running in front of the box seats. The seats in the grandstand were reached by steps leading from the aisle. The aisle led to exits, one of which was to the east and just outside of Section J. There was also an exit to the west just at the corner of Section L. The exits were also referred to as entrances and chutes. The screen was in front of the entire tier of box seats and grandstand seats in that section of the grandstand in which plaintiff and her sister were seated. A patron leaving Section L behind the screened area and walking toward the east exit would have to walk thirteen feet nine inches after passing beyond the upper screen, and about ten feet after passing beyond the lower screen to reach that exit. On the other side of the screen toward the west there was a three and one-half foot space between the screen and the exit on that side. The evidence shows that the grandstand was made of concrete. There was no dispute as to the park being "a very modern park." There were a number of other exits provided for the patrons and they were allowed to select their own exits in leaving the park.
Plaintiff testified that when she entered the grandstand she was directed to the seats in Section L by an usher at the entrance-exit chute to the east of the screened area. She remained in her seat for the greater part of the game and started to leave the park during the last half of the ninth inning. Leaving her seat, plaintiff walked down the regular aisleway and turned to the right towards the east entrance-exit chute, which would lead out directly to Grand Avenue, where she expected to board a street car to go home. She testified she was forced to leave the game at that time because it was necessary for her to prepare an early...
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